On April 24, 2025, the U.S. Department of Justice (DOJ) filed an unopposed motion in the U.S. Court of Appeals for the Second Circuit for voluntary dismissal of its appeal of an October 2024 decision finding that eBay is immune from liability under Section 230 of the Communications Decency Act. USA v. eBay, No. 24-3104. As reported in our September 28, 2023, memorandum, in September 2023, DOJ, on behalf of the U.S. Environmental Protection Agency (EPA), filed a complaint in the U.S. District court for the Eastern District of New York against eBay “for unlawfully selling, offering for sale, causing the sale of, and distributing hundreds of thousands of products” in violation of the Clean Air Act (CAA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Toxic Substances Control Act (TSCA). USA v. eBay, No. 23-CV-7173. According to EPA, the complaint seeks a ruling that eBay’s business practices as an e-commerce retailer violated the CAA, FIFRA, and TSCA and injunctive relief to enjoin eBay from further violations of these laws, as well as civil penalties for violations of the CAA. On September 30, 2024, the court granted eBay’s motion to dismiss the case, finding that:
- eBay did not sell, offer for sale, or cause the sale or offer for sale of aftermarket defeat devices in violation of the CAA;
- eBay did not distribute or sell pesticides in violation of FIFRA;
- EPA pled facts sufficient to allege that eBay introduces methylene-chloride containing products into commerce, thus distributing them in violation of TSCA and the methylene chloride rule; and
- Section 230 of the Communications Decency Act independently bars EPA’s claims.
The lower court notes that although eBay’s motion to dismiss fails under TSCA, because the court agrees with eBay’s argument that Section 230 applies, it granted eBay’s motion to dismiss. Under the Biden Administration, EPA filed a notice of appeal in the U.S. Court of Appeals for the Second Circuit on November 26, 2024.